A remainder is a future interest created in someone other than a transferor which, according to the terms of its creation, will become a present estate (if ever) immediately upon and no sooner than the expiration of all prior estates created simultaneously therewith.
Thus, Grutz, the owner of Blackacre in FSA, conveys it:
To Roger Clemens for his life, then to Pedro Martinez and his heirs.
Pedro has a remainder in FSA. Notice it satisfies the definition:
1. The future interest was created in Pedro, not in Grutz, the transferor.
2. It will become possessory immediately upon and no sooner than the expiration of Clemens’ life estate (i.e. it does not cut off Clemens’ life estate, but takes effect only upon the natural termination of the life estate).
Now, how about this one:
Suppose Grutz, the owner of Blackacre in FSA, conveys it on January 2, 2023 “to Roger Clemens for his life.” Then on January 3, Grutz conveys the future interest following Clemens’ life estate “to Pedro Martinez.” Does Pedro have a remainder?
What was the State of the title following the conveyance on January 2?
Clemens – Life Estate
Grutz – Reversion
Did Grutz’s reversion become a remainder when Grutz transferred it to Pedro?
No. A reversion continues to be recognized as a reversion even if the Grantor transfers it to a third person. So Pedro is the new owner of the Reversion.
A remainder can be created after a life estate, a fee tail, or a term of years, but never after any kind of a fee simple (absolute, conditional, or defeasible).
Remainders can be created in fee simple, for life, in fee tail, or for a term of years and can be made defeasible.
Thus, Grutz conveys: "to Roger Clemens for his life, then to Pedro Martinez
for his life." What is the state of the title?
Clemens — has a Life Estate
Pedro — has a remainder in a life estate
Grutz — has a reversion
Notice that Pedro's remainder was created "after a life estate" (i.e. following Roger's life estate) and "in a life estate" (i.e. Pedro's remainder is a remainder for life).
Remainders may also be vested or contingent.
A vested remainder is a remainder which is in favor of an existing and ascertained person and which is not subject to any condition precedent.
Thus, in our Pedro example, ("to Roger for life, then to Pedro and his heirs"), Pedro has a vested remainder, because he is a living, ascertained person (he is Pedro!) and the remainder will take effect immediately upon Roger's death and is not subject to any condition precedent.
Compare this conveyance: “to Roger for life, and if the Red Sox win the World Series in 2026, then to Pedro and his heirs.”
This is not a vested remainder, because Pedro’s right is subject to the condition precedent that the Red Sox win in 2026. Pedro has a contingent remainder in this example.
A contingent remainder is one which is:
(a) to an unborn person or persons; or
(b) to an unascertained person or persons: or
(c) subject to a condition precedent.
Examples:
(a) "to A for life, remainder to A's children." Assume A has no children at the time. The remainder here is a contingent remainder in favor of A's future — as yet unborn — children.
(b) "To A for life, remainder to those children of A who survive
their father." A is alive and has 3 children: B, C and D.
The remainder is contingent because it is in favor of an unascertained class of persons (surviving children of A).
Notice these last two examples are very similar. In one case, the remainder men are unascertained because they are unborn, and in the second case because of some other future event such as surviving their father.
(c) "to Roger for life, and if the Red Sox win the World Series in
2026, then to Pedro Martinez and his heirs." Contingent remainder subject to condition precedent.
Notice that, in all 3 of these cases, until the remainder vests Grutz retains a reversion.
Why?
What the Grantor does not convey, he retains.
What happens if the Red Sox don't win the World Series in 2026?
Pedro's remainder fails, and Pedro cannot take on Roger's death. What happens to Blackacre when Roger dies? It reverts to Grutz in fee simple.
